United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING OBJECTIONS, ADOPTING REPORT AND
RECOMMENDATION, DENYING MOTION TO VACATE SENTENCE, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO
PROCEED IN FORMA PAUPERIS
L. LUDINGTON United States District Judge
22, 2015, Petitioner Joanne Tragas filed a motion to vacate
her sentence under 28 U.S.C. § 2255. ECF No. 440. On
March 18, 2016, Magistrate Judge Patricia T. Morris issued a
report recommending that Tragas's motion be denied in its
entirety. ECF No. 466. In lieu of objecting to the report and
recommendation, Tragas filed two motions on April 6, 2016.
The first motion asked the Court to appoint counsel and
requested a 60 day extension of Tragas's deadline to file
objections to the report and recommendation. ECF No. 467. The
second motion asked the Court to compel one of Tragas's
former attorneys, Mr. Busse, to give Tragas her case file and
also sought extensive discovery from the Government. ECF No.
468. On May 20, 2016, the Court denied Tragas's motion
for appointment of counsel, held Tragas's request for an
extension of time to file objections in abeyance pending
resolution of her motion to compel, and directed the
Government to respond to Tragas's motion to compel. ECF
No. 469. After reviewing the Government's response, the
Court concluded that the discovery Tragas was seeking was
irrelevant to the claims advanced in her habeas petition.
Accordingly, the Court denied her motion to compel discovery,
but granted her an extension of time to file objections. ECF
No. 482. Tragas timely filed objections. ECF No. 483. For the
reasons stated below, the objections will be overruled and
the report and recommendation will be adopted.
motion to vacate her sentence under § 2255, Tragas
advances twelve grounds for relief. In the first three
grounds, Tragas argues that her trial counsel was ineffective
during plea negotiations. Mot. Vacate at 2, ECF No. 440, Page
ID 3519. In the fourth ground, Tragas argues that her trial
counsel improperly failed to inform the Court of a conflict
of interest. In ground five, Tragas faults the Court for
failing to thoroughly investigate the dissatisfaction she had
with her retained attorney prior to trial. In ground six,
Tragas argues that her attorneys at sentencing failed to
object to erroneous enhancements and inaccurate guideline
calculations. In ground seven, Tragas argues that the
Government knowingly utilized falsified evidence, in the form
of a thumb drive allegedly seized from her residence, at
trial. In ground eight, Tragas asserts that her attorneys
were ineffective because they failed to inform the Canadian
and Greek consulates that Tragas was facing charges. In
ground nine, Tragas contends that one of her attorneys
destroyed evidence or failed to provide Tragas's next
attorney with certain evidence. In the tenth ground for
relief, Tragas asserts that the cumulative effects of errors
denied her a fair trial. In ground eleven, Tragas argues that
her trial counsel should have investigated an illegal search
and seizure of her bank account. Finally, Tragas contends
that her trial counsel did not properly prepare for or
investigate her case. In particular, she asserts that her
counsel refused to file a motion to suppress evidence.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
those objections that are specific are entitled to a de novo
review under the statute. Mira v. Marshall, 806 F.2d
636, 637 (6th Cir. 1986). “The parties have the duty to
pinpoint those portions of the magistrate's report that
the district court must specially consider.”
Id. (internal quotation marks and citation omitted).
A general objection, or one that merely restates the
arguments previously presented, does not sufficiently
identify alleged errors on the part of the magistrate judge.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
has filed twenty-five pages of objections. She appears to
object, in general terms, to Judge Morris's analysis of
each of her grounds for relief. But the objections are
presented in narrative form and, for the most part, do not
identify the specific reasoning in the report and
recommendation that is being objected to. As explained above,
non-specific objections do not trigger de novo review.
However, because Tragas is representing herself, her
objections will be construed liberally. To the extent
possible, they will be addressed in turn.
first objection, Tragas takes issue with Judge Morris's
recommendation that her fifth and seventh claims be dismissed
for failure to raise them on appeal. As Judge Morris
explained, issues which were not raised on appeal are waived
unless the “alleged error constitutes a
‘fundamental defect which inherently results in a
complete miscarriage of justice.'” Grant v.
United States, 72 F.3d 503, 505 (6th Cir. 1996) (quoting
Reed v. Farley, 114 S.Ct. 2291, 2300 (1994)). In her
objections, Tragas simply reiterates the substance of her
claims in grounds five and seven. As to ground five, Tragas
argues that the Court improperly failed to inquire into her
degenerating relationship with her attorney, Mr. Weiss.
Throughout her case, Tragas received the assistance of five
different retained attorneys and two court-appointed
attorneys. Needless to say, Tragas frequently expressed
displeasure with her representation. But, by Tragas's own
representation, the Court gave Tragas an opportunity, on the
record, to discuss her frustrations with Mr. Weiss.
See Objs. at 2. After Tragas indicated that she was
unhappy with Mr. Weiss's representation, the Court
directed Mr. Weiss to discuss the issue privately with
Tragas. Afterwards, Tragas did not reassert her objection.
Now, Tragas argues that this was because she was intimidated
by the Court. But even if that is true, Tragas has not shown
that the Court's investigation was so deficient as to
constitute a complete miscarriage of justice. Likewise, she
has not demonstrated that any communication difficulties
between Tragas and Mr. Weiss caused actual prejudice to her.
the argument Tragas advances regarding her seventh ground for
relief is meritless. In this ground, Tragas argues that the
Government offered a thumb drive which was illegally seized
from her home as evidence at trial. However, Tragas cannot
seek habeas corpus relief on the “ground that evidence
obtained in an unconstitutional search or seizure was
introduced at [her] trial.” Stone v. Powell,
428 U.S. 465, 494 (1976). For that reason, this ground must
also be dismissed.
Tragas turns her attention to Judge Morris's analysis of
her first three grounds for relief, which allege that her
trial counsel was ineffective during plea negotiations.
Defendants are entitled to effective assistance of counsel
during plea negotiations. Lafler v. Cooper, 566 U.S.
156, 162 (2012). As in all ineffective assistance of counsel
challenges, the familiar Strickland v. Washington
test applies. Id. (citing 466 U.S. 668). First, the
defendant must show “that the counsel's
representation fell below an objective standard of
reasonableness.” Strickland, 466 at 688.
Second, the defendant must show “that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694.
Tragas is arguing that, but for the ineffective assistance of
her trial counsel, she would have entered a plea. In this
context, “a defendant must show that but for the
ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to
the court (i.e., that the defendant would have accepted the
plea and the prosecution would not have withdrawn it in light
of intervening circumstances), that the court would have
accepted its terms, and that the conviction or sentence, or
both, under the offer's terms would have been less severe
than under the judgment and sentence that in fact were
imposed.” Lafler, 566 U.S. at 164. “[A]s
a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms
and conditions that may be favorable to the accused.”
Missouri v. Frye, 566 U.S. 133, 145 (2012).
Tragas alleges that her counsel, Mr. Busse, received a plea
offer from the Government on January 12, 2010. Objs. at 5.
Under the offer, Tragas would serve a 63-78 month sentence.
According to Tragas, the deadline to accept the plea was
January, 20, 2010, but Mr. Busse did not notify Tragas of the
offer until January 29, 2010. On its face, this is sufficient
to allege that Mr. Busse's representation was deficient.
As explained above, Mr. Busse had a duty to communicate the
plea offer to Tragas and allegedly did not do so within the
deadline to accept.
even accepting Tragas's allegations as true, she has not
alleged facts which would suggest that she was prejudiced by
Mr. Busse's delay in relaying the plea offer. She does
not contend that she sought to accept the plea offer but was
rebuffed because the offer had lapsed. Rather, Tragas
contends that her counsel repeatedly told her that, if she
proceeded to trial and lost, she would receive only 2 or 3
more years of prison time. Based on that representation, Tragas
asserts, she rejected the plea offer (and instructed her
attorney to communicate a counteroffer of 2-4 years of prison
the second final pretrial conference, Judge Binder discussed
Tragas's rejection of the plea offers with her:
[The Court:] Ms. Tragas, your lawyer says that the - that the
government has offered to - a plea agreement to what I would
presume to be some of the charges but not all of them. Is
The Defendant: That's correct.
The Court: I would presume that the plea agreement would
involve the dismissal of some of the charges that are made